Criminal Law

Judge Garland’s criminal law jurisprudence has a decidedly pro-government bent, but not uniformly so. We think it’s fair to characterize his general approach as pragmatic, and sometimes less concerned with formalities than his peers on the D.C. Circuit.

We’ve included two opinions touching on the Fourth Amendment, United States v. Brown, 334 F.3d 1161 (1998), and United States v. Webb, 255 F.3d 890 (2001). Notably, his opinion in Brown may evince a preference not to second-guess a police officer’s assessment of potential threats on the ground. In three sentencing cases, United States v. Wilson, 240 F.3d 39 (2001) (Garland, J., dissenting), United States v. Bras, 483 F.3d 103 (2007), and United States v. Webb, 255 F.3d 890 (2001), Garland voted to uphold a challenged sentence. However, in Bras, he did take a pro-defendant position in holding that defendants need not object to the reasonableness of a sentence in order to preserve the issue for appeal. Similarly, in three criminal trial procedure cases included here,United States v. Spinner, 152 F.3d 950 (1998) (Garland, J., dissenting), United States v. Watson, 171 F.3d 695 (1999) (Garland, J., dissenting), and United States v. Mejia, 448 F.3d 436 (2006), Garland voted against criminal defendants claiming error in the trial court, but in United States v. Caso, 723 F.3d 215 (2013), he voted to allow a defendant to collaterally attack his conviction and sentence. Finally, we have included Valdes v. United States, 475 F.3d 1319 (2007) (Garland, J., dissenting), where Garland warned that the majority’s interpretation of an anti-gratuity statute would undermine bribery prosecutions.

Valdes v. United States (2007)

Nelson Valdes, a detective with the D.C. Metropolitan Police Department, received payments from an undercover FBI informant after running license plates and checking for outstanding warrants at the informant’s request. A jury convicted Valdes of three counts of receiving an illegal gratuity “for or because of an official act.” The D.C. Circuit, sitting en banc, reversed the conviction, interpreting the anti-gratuity provision to only cover corruption of official decisions through the misuse of influence in governmental decision-making. Concerns about officials moonlighting or misusing government resources were, in the court’s view, properly addressed by other regulations and statutes prohibiting such activities.

Garland dissented. He characterized Valdes’ acts as a police investigation, and thus an official act. While the majority saw the acts as “simple interrogative activity,” Garland noted that many official investigations are just as brief. If Valdes had been ordered by a superior to run the tags, Garland said, it would surely constitute an investigation; the fact he did so in response to the informant made no difference. Moreover, he characterized Valdes’ acts as being taken in his “official capacity,” as he used a police database that he knew could only be used for police business. Garland warned that under the majority’s interpretation, criminals may reward officials for providing them with sensitive information without running afoul of the anti-gratuity provision; bribery prosecutions may be endangered as well, as they rely on the same definition of “official act.”

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United States v. Wilson (2001)

Under federal sentencing guidelines, Sonni Wilson’s sentence for bank fraud was enhanced based on the trial court’s finding that he was “an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive.” A key dispute was whether, in determining if activity is “otherwise extensive,” a court should look primarily at the number of persons involved in the activity (the test adopted by the Second and Third Circuits), or look to the overall scale of the activity under the totality of the circumstances (the test adopted by several other circuits). Based on the Sentencing Commission’s Commentary’s focus on the role of unknowing actors, and concern about “unconstrained inquiry” and “double counting” (consideration of factors that have already been used to establish the base offensive level), the court sided with the Second and Third Circuit approach. Thus, the court found that there was no basis for the enhancement under the guidelines, and vacated the sentence.

Garland, dissenting in part, would have upheld the sentence. He sided with the view that “otherwise extensive” encompassed more than headcount; the guidelines and Commentary support an assessment of factors like duration, geographic reach, degree of organizational sophistication, and number of constituent transactions. Garland wrote that such an approach, based on a “commonsense reading of the term,” is no more unconstrained than the search for meaning of other vague guideline terms; moreover, the trial court’s discretion is ultimately constrained by appellate review. As for double counting, Garland wrote that the Commission expressly forbids it where it is not intended, and here, there is no indication that double counting was disfavored. And, he wrote, double counting is not truly an issue in this case, as the same conduct was used in addressing different attributes of culpability.

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United States v. Spinner (1998)

In Spinner, the court reversed Richard Spinner’s conviction for possession of a semiautomatic assault weapon. The prosecution needed to prove that an AR-15 has “a pistol grip that protrudes conspicuously beneath the action of the weapon.” But the prosecution’s expert witness testified that the AR-15 had a “pistol grip that extends beyond the bottom of the receiver,” a term of art that was never explained to the jury. Moreover, evidence of mens rea was “very thin,” as it was unclear that Spinner had ever seen or handled the weapon. Although Spinner was in the home where the weapon was found, he had moved out two months prior to his arrest, and there were no fingerprints connecting him to the weapon. And while the bedroom containing the weapon contained documents bearing Spinner’s name, it also contained documents bearing the names of other family members.

The court also reversed Spinner’s conviction for possession with intent to distribute crack cocaine. The court found the lower court erred in permitting the prosecutor to question a defense witness about a letter she had written to Spinner while he was incarcerated, chastising him for allowing people to “[use] your mother and her home to do this s***…” This evidence, which the prosecutor used in her closing argument, was inadmissible under Rule 404(b), as the government failed to show a not-for-character purpose—the court rejected the government’s argument that the letter was used to impeach the witness, nor was it convinced that it went to Spinner’s “intent” or “absence of mistake,” as “do[ing] this s***” did not necessarily refer to drug dealing.

Garland dissented. As to the weapons offense, Garland wrote that the jury could figure out that the pistol grip extended below the action even without knowing what an action was, since the pistol grip extended below every other part of the gun. And there was strong circumstantial evidence that Spinner knew of the gun, given evidence that Spinner was involved in a well-armed drug operation based in the home, and the fact that Spinner’s personal documents were found in the room where the gun was located. As to the drug offense, Garland believed that if the letter created only a weak inference of prior drug dealing, it was harmless error to introduce it; on the other hand, if a reasonable jury could have read the letter as referring to prior drug dealing, it wasn’t error in the first place. Ultimately, Garland concluded that any prejudice resulting from the cross-examination did not affect Spinner’s substantial rights.

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United States v. Brown (2003)

After shots were fired through the window of an apartment building in Washington D.C., police investigated a white Cadillac parked in an adjacent parking lot. While the officers spoke to the occupants of the car, a man emerged from a nearby black Cadillac to observe the scene, then walked away. Police approached the black Cadillac to question the remaining occupants when they saw, through the car’s tinted windows, one of the occupants moving from the rear seat to the front seat. An officer knocked on the rear passenger-side door where Rocky Brown was sitting, and when there was no response, the officer opened the door. Once opened, the officer observed a pistol on the floor of the car near Brown’s hand. Brown was charged and convicted of unlawful possession of a firearm and ammunition by a convicted felon.

The main issue in the case was whether the officer had reasonable suspicion to undertake a Terry stop, and reasonable fear for their safety to conduct a protective search. Garland sided with the government, writing that the reasonableness of the officers’ actions was supported by (a) the fact that the incident took place in a neighborhood known for “a lot of drug activity,” (b) the report of the gunshot fired from the parking lot through the window, (c) the man emerging from the black Cadillac to observe the scene, and (d) the passenger’s “furtive movements” in moving from the back seat to the front seat. Moreover, the fact that police were approaching an automobile, and one with tinted windows obscuring the officers’ view of the inside of the car, gave additions grounds to justify fear of physical harm.

Rogers, dissenting, noted that hours had passed from the time of the shooting to the time officers arrived at the lot, and a witness had directed police to a white car, not the black car Brown was in. Nothing in the record, Rogers said, gave officers reasonable suspicion of criminal activity or fear of danger; officers relied on generalized suspicions, not the particularized suspicions mandated by Terry. Rogers would have followed other circuits in holding that reasonable suspicion is not created by the totality of the circumstances when each piece of evidence is a weak indicator of criminal activity or dangerousness. “Cobbling together innocent circumstances, and drawing inferences in favor of the government that are unsupported by the evidence, the court concludes that because Brown … was in the wrong place … at the wrong time, the police had articulable suspicion that he was engaged in criminal wrongdoing.”

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United States v. Bras (2007)

Antonio Bras pled guilty to conspiracy to commit bribery and highway project fraud and was sentenced to 37 months in prison. On appeal, Bras contended that the district court failed to adequately consider sentencing factors under the Sentencing Reform Act and the sentence was unreasonably long.

Notably, the panel rejected the government’s argument for application of a plain error standard due to Bras’ failure to object to the sentence in the trial court. In doing so, the court sided with the Third, Fourth, and Seventh Circuits in a circuit split regarding whether defendants must object to the reasonableness of a sentence in order to preserve the issue for appeal. “Reasonableness,” Garland wrote, “is the standard of appellate review, not an objection that must be raised upon the pronouncement of a sentence.” Still, under a “reasonableness” standard of review, the panel held that Bras had offered no basis to conclude the trial court’s consideration of the relevant sentencing factors was inadequate or the sentence was unreasonable.

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United States v. Watson (1999)

At Talib Watson’s drug trial, prosecutors sought to connect Watson to a car containing crack cocaine and heroin by establishing that the owner of the car, Tyra Jackson, was Watson’s girlfriend. Unfortunately for the prosecutor, the witness testimony was ambiguous:

Prosecutor: “Mr. Thomas, you believe that you know Watson’s girlfriend, Tyra Jackson, right?”
Thomas: “I never testified I knew her or not.”
Prosecutor: “You believe that you may have met her once or twice, right?”
Thomas: “Maybe.”

Yet in closing arguments, the prosecutor recounted the exchange as: “Do you think you met Tyra Jackson?” “Well, I think I met her once or twice. I think I’ve met Watson’s girlfriend, Tyra Jackson once or twice.”

The majority held that this was not harmless error, as the case was close and credibility was key, the testimony concerned a central issue in the case, and the government could not point to anything mitigating the prejudice beyond the standard jury instructions that closing arguments and lawyers’ questions are not evidence.

Garland dissented. He wrote that reversal of a conviction based on a prosecutor’s closing argument is only warranted “in the most egregious of cases.” Garland reasoned that the prosecutor’s error was not severe, as it was unintentional, concerned only one sentence of testimony, and only “eliminat[ed] … ambiguity” in the witness’s testimony. Moreover, he argued that jury instructions mitigated the prejudice, and the defense had ample opportunity to correct the prosecutor’s error in its closing argument. Finally, the evidence against Watson was weighty enough to support upholding the conviction in light of the above factors. Garland wrote: “We have always relied on the self-corrective nature of the adversary system, combined with instructions from the court, to police all but the most egregious of these kinds of errors.”

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United States v. Mejia (2006)

Five days before Rafael Mejia and Homes Rios’s drug trial was to begin, the Justice Department, pursuant to the Classified Information Procedures Act (CIPA), filed an ex parte, in camera motion with the trial court seeking to prevent disclosure of certain classified information during discovery. The trial court granted the motion, determining that the information was not subject to discovery and issuing a sealed protective order. On appeal, the panel affirmed the trial court under the Yunis standard: the information was relevant, the assertion of privilege was at least colorable, and the information was not helpful or beneficial to the accused.

The panel rejected Mejia’s argument that judicial determinations regarding disclosure of classified information under CIPA must be made with the participation of defendants and their counsel. While Garland acknowledged that this results in a “difficult [predicament]” for the defense, he found that the relevant CIPA provision authorizes courts to conduct such ex parte proceedings, and cited legislative history stating that an adversarial hearing would subvert the purpose of the privilege. Garland also rejected the claim that the lower court’s proceedings violated the defendants’ confrontation right on the ground that this is a trial right, not a right to pretrial discovery.

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United States v. Webb (2001)

After selling crack cocaine three times to a government informant, Dennis Webb was convicted of drug offenses under three federal provisions: 21 U.S.C. § 841(b)(1)(A), prohibiting sale of 50 grams or more of crack cocaine, § 841(b)(1)(B), prohibiting sale of 5 grams or more, and § 841(b)(1)(C), prohibiting sale of any other amount. However, the trial court failed to submit to the jury the question of whether these sales met the 5 or 50 gram thresholds, meaning the quantity elements of the (A) and (B) offenses were not found by the jury to be proven beyond a reasonable doubt. Moreover, under federal sentencing guidelines, Webb’s convictions for the (A) and (B) offenses increased his sentence for the (C) offense; thus, Webb claimed that his sentence was increased beyond the statutory maximum based on a fact not submitted to the jury, in contravention of the Supreme Court’s ruling in Apprendi.

Applying a plain error standard (due to Webb’s failure to object at trial), Garland wrote that there was overwhelming and uncontroverted evidence that Webb’s sales had met the quantity thresholds. In view of this, the fourth prong of the plain error standard—a basis for concluding the error seriously affected the fairness, integrity, or public reputation of judicial proceedings—was not met. Thus, the (A) and (B) convictions could stand, and the sentence for (C) was properly enhanced.

However, Garland was troubled by a magistrate’s granting of a search warrant for Webb’s apartment issued 109 days after the final drug transaction between Webb and the informant. While the government’s application stated that drug dealers often keep transaction records in their home, Garland seemed skeptical that there was probable cause to believe such records would still be in the home after such a lengthy period. However, in light of evidence of Webb’s long-term drug dealing, he concluded that a reasonable officer could believe there was probable cause to search, and thus suppression was inappropriate under the good faith exception established in Leon.

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United States v. Caso (2013)

While serving as chief of staff to a congressman, Russell Caso was lobbied by a consulting firm to take action on two legislative proposals. The same firm retained Caso’s wife to edit drafts of these proposals, paying her $19,000 for what appeared to be de minimis work—payments which Caso failed to disclose on an annual financial disclosure statement. The government charged Caso with honest-services wire fraud, forgoing a charge of making a materially false statement in the course of plea bargaining. Caso was convicted, but after sentencing the Supreme Court handed down Skilling, 130 S. Ct. 2896 (2010), which narrowed the honest-services fraud statute to proscribe only bribes and kickbacks. Under this narrower meaning, Caso was innocent.

Caso filed a motion to vacate his conviction and sentence, but the trial court held that he had procedurally defaulted his claim by failing to raise it on direct review. Under Bousley, 523 U.S. 614 (1998), such a defaulted claim can be raised in habeas only when a defendant can demonstrate they are “actually innocent”; however, if the government has forgone a charge of equal or greater seriousness in the course of plea bargaining, the defendant’s showing of actual innocence must extend to those forgone charges. The district court denied Caso’s motion, holding that the charge of making a materially false statement was equally serious to the honest-services conspiracy charge, and Caso could not show actual innocence of the false statement charge.

The D.C. Circuit held that the appropriate measure of the seriousness of an offense must be derived from the Sentencing Guidelines for two reasons. First, the Guidelines are what defendants rely on in deciding whether to plead and what to plead to. Second, equity requires that a defendant not be required to serve a longer sentence for a crime they did not commit, on the basis that they cannot demonstrate innocence of another crime that would have yielded a shorter sentence. Here, because the offense of making a false statement corresponded to a lower base offense level in the Guidelines than conspiracy to commit honest-services fraud, the former was less serious than the latter for the purposes of Bousley, and thus the district court erred in denying Caso’s motion.

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